MDRN-31

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 16?

48th Meeting, May 9, 2018
with some "inked-in" comments in part relative to my essay and Briefs. v.E. 0

The Special Senate Committee on Senate Modernization met this day at 12 p.m. to consider methods to make the Senate more effective within the current constitutional framework. 1

Senator Thomas J. McInnis (Deputy Chair) in the chair. 2

The Deputy Chair: Honourable senators, as you will notice, our colleague Senator Greene is unavoidably absent and has asked that I preside in his place. In addition, the other deputy chair, Senator Joyal, has a very important matter and is unable to be here. 3

As the chair noted at the conclusion of our last meeting, one of the issues we are looking at in this committee is a matter raised by our colleague the Honourable Senator Diane Bellemare, and that is the use of a checklist by committees when they study legislation. 3-1

As you will know from your background notes, this topic has been discussed at different times in the past. One of our witnesses, former Clerk of the Senate, Dr. Gary O'Brien, referred to them in his remarks. 3-2

This committee has yet to conclude whether it should pronounce itself on their use, and your steering committee felt it would be important to hear from the most recent proponent of their use. 3-3

Senator Bellemare, as you all know, serves as the Legislative Deputy to the Government Representative in the Senate. However, with respect to this matter, Senator Bellemare appears not in that official role but in her more private capacity as an individual senator. 3-4

Senator Bellemare's checklist is on our Order Paper as a motion and is included, colleagues, in the documents sent to you before this meeting. 3-5

Senator Bellemere, thank you for coming today to share with us your thoughts on the motion you have placed before the Senate and why you think this would be an improvement to how Senate committees conduct their review of legislation. 3-6

Please proceed, and welcome. 3-7

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): I admit that I am a bit nervous to be appearing before a committee. I was appointed in 2012, and this is the first time I have been invited to appear as a witness. 4

Senator Massicotte: You are right to be nervous. 5

Senator Bellemare: I want to first thank you for the invitation. I am appearing as an individual, and I hope that our discussion will be constructive. 6

From the outset, I want to thank the Library of Parliament analysts who have provided notes that clearly show that this legislative checklist is not an idea I invented. Yes, this motion seemed to me as something that was needed. However, others before me thought it would be useful to make the list. 6-1

The idea to make a legislative checklist came to me fairly soon after I joined the Senate. As a senator affiliated with the Conservative caucus, this was the first time I was a member of a caucus. I had tried to get elected, but I had never participated in a political caucus. 6-2

I was very naîve when I came to the Senate, but soon after, an issue appeared of importance to me. I had to figure out how to reconcile my constitutional mandate as a senator, which consists in studying bills impartially, with my participation in a caucus affiliated with a recognized political party, consisting of members or ministers from the other house. 6-3

The caucus I belong to had the mandate to review House of Commons legislation and participate in more general political strategies. I told myself that the answer may lie in the Senate. After researching what was being done around the world, I started to wonder about the Senate's role and constitutional mandate. 6-4

When the Supreme Court rendered its ruling, it clarified our mandate related to the impartial consideration of bills. From then on, while thinking about the way to position myself in that political world, I created a list of points to clarify that would help us take a position on decisions we needed to make on bills. 6-5

On September 30, 2014, I presented that analysis list in the House. It was part of my second speech on the nature of the Senate. I gave a first speech in the fall of 2014, as part of Senator Nolin's questions on the Senate reform. The following week, I gave a speech on the constitutional characteristics that may be worthwhile adopting, without amending the Constitution. The goal was to give us an opportunity to fulfill our mandate in a more independent manner. 6-6

I referred to that motion, which I then took further. That motion actually served as a guide on ethical conduct in the study of private members' bills. I also used it as a guide when I became an independent senator with no party affiliation. Even today, I use it as a guide in studying government bills. It is a very useful guide in the exercise of our constitutional mandate, regardless of the political party in power. 6-7

Here what is proposed in motion No. 89, which is something of a list of observations: 6-8

Committees should be obliged to report on some observations. Actually, committees, as you know, can make observations, but they are not obliged to do it. 6-9

This would be a list committees would have to use, not in a bureaucratic way, but at least to have an answer to certain questions they would have to report on to the Senate. 6-10

... the committee's observations on: 6-11

(a) whether the bill generally conforms with the Constitution of Canada, including: 6-12

(i) the Canadian Charter of Rights and Freedoms, and 6-13

(ii) the division of legislative powers between Parliament and the provincial and territorial legislatures; 6-14

(b) whether the bill conforms with treaties and international agreements that Canada has signed or ratified; .... 6-15

You could read the rest of the document that was produced by the Library of Parliament analysts. 6-16

(d) whether the bill has any impact on one or more provinces or territories; 6-17

(e) whether the appropriate consultations have been conducted; 6-18

(f) whether the bill contains any obvious drafting errors; 6-19

(g) all amendments moved but not adopted in the committees, including the text of these amendments; and 6-20

(h) any other matter that, in the committee's opinion, should be brought to the attention of the Senate.... 6-21

As you know, honourable colleagues, on October 19, 2016, Senator Nancy Ruth amended this motion by adding another criterion to it. 6-22

(d) whether the bill has received substantive gender-based analysis; .... 6-23

As you can see, this is a very simple motion. The Rules of the Senate do not prohibit it, but committees don't generally do it. That is what inspired me to propose this motion. Very often—you see it in the case of very important bills—the report of the committee that studied the bill is summarized in a single sentence. Here is an example of that: 6-24

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its Eleventh Report. 6-25

Your committee, to which was referred Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act, and the Income Tax Act, has, in obedience to the order reference of December 15, 2016, examined the said bill and now reports the same without amendment. 6-26

Respectfully submitted, Chair. 6-27

Generally, when there is no amendment in a bill, that is the response provided. There are no other obligations. It is simply said, "without amendment". 6-28

In the case of private bills, that can cause problems, especially if no information other than speeches is available. Sometimes, it is useful to know what was said at committee meetings. It is even more useful because we have an increasingly independent Senate where the caucuses are not the same as in the past. 6-29

That simple methodology has a vital purpose. As you said, Mr. O'Brien proposed an idea along those lines. He even said, before us, that this proposal had been submitted to the Rules Committee in 2001. In that respect, I invite you to consult the short document distributed by the Library of Parliament. 6-30

One suggestion I will make to improve legislative practice in the Senate is to adopt a recommendation considered by the Rules Committee when Senator Austin was in the chair: That, when reporting a bill, the committee provide a checklist of issues, much like a memorandum to the cabinet includes. The checklist would provide the committee's findings on various criteria important to public policy-making, such as how the bill may impact on regional development, what the chances are that the bill will breach Charter rights, and what the overall cost and benefit of this proposal is. By doing so, the legislative process in the Parliament of Canada could be strengthened. 6-31

Mr. O'Brien specified that the Rules Committee met in 2001 to discuss this issue. 6-32

In my opinion, this list meets a number of very important objectives. It helps us, I am sure, fulfill our constitutional role by enabling us to analyze bills in a way that goes beyond simple personal positions and preferences. When we are independent senators and do not belong to a group affiliated with a political party, we lack the benchmarks for debating a bill. In a political party, there is more freedom in the case of private bills, but since we sit with members, we often meet those same members. When we belong to an affiliated group, the government bills can go more along the party lines. 6-33

For independent senators who are not members of groups belonging to a political party, it can be difficult to take a stand on a bill. These kinds of criteria help us debate bills based on considerations related to our mandate. I think they help improve the effectiveness of our debates in the chamber. Senators who receive a committee report containing such observations are more likely to properly participate in debates at third reading in the chamber. 6-34

In the past, I have had to evaluate unclear private members' bills in the chamber. When the bill is summarized in a single line, it is very difficult to know what happened during debates, especially if we were not there. In my opinion, such a report improves the effectiveness of debates in the chamber and leads to more focussed discussions. When a committee decides, for example, that such a decision is constitutional because the division of powers in the regions was respected, but two provinces expressed a particular concern, that can help the senators who were absent during the debate to take the study of the bill a bit further. 6-35

In addition, I think the list promotes transparency. When a committee's report is summarized in one sentence and there are speeches, we don't really know what position to take. It is important to have information on hand. For example, provinces or members of minorities could tell us that it is preferable to amend the bill in a specific way or to add a line to it. We have an opportunity to be more transparent with the population that gives us the mandate to study bills. That way, we can take a second look at it while enshrining our tremendous power. 6-36

That dimension of power brought me to create this kind of a list. When I was reading up on other senates around the world and the role of the Senate, I quickly understood that we had tremendous powers. I also realized that, in some countries, given the huge powers of senates around the world, in 1911, the United Kingdom adopted legislation to enshrine the power of the House of Lords. 6-37

That tremendous power may be why, for 150 years, the other place has tried to impose on the Senate a particular party line. If we discipline ourselves, we may be able to have a much friendlier dialogue with the other chamber, since we would have objective criteria to debate a bill and not only the ideology of the party in power. 6-38

I told myself that this kind of a list could help us regulate our tremendous power without having to resort to constitutional or legislative amendments, simply through self-discipline. Making such a list did not seem bureaucratic to me at all because committees hear from experts and gather information. 6-39

So the idea is to respond according to a list and to summarize what was said. Once again, I think the approach of a motion to force committees to make a report is logical. I have sat on public boards of directors where, when briefs were distributed to the members in important cases, I knew very well they would not have the time to read them thoroughly. So a summary of the ins and outs of proposals was always prepared. In Cabinet, I'm convinced that ministers have that kind of a guide to establish the pros and cons of the proposals they receive. 6-40

In short, I think that using such an analysis would greatly improve our analyses of bills and would force—and this is another dimension—parliamentarians and governments to report more comprehensively on bills they want to pass. Witnesses invited to our meetings would know about that list and would have to defend their positions. That is especially true for private bills because I feel that they are not always thoroughly examined, especially by the Department of Justice. 6-41

Generally speaking, government bills have gone through the Department of Justice. Once Bill C-51 passes, we will receive the report of the Department of Justice concerning the Canadian Charter of Rights and Freedoms and the Constitution. 6-42

I think the fact that senators are increasingly unaffiliated with a recognized political party is a useful tool. 6-43

This checklist provides me with a helpful accountability framework in my work as a legislator. It has been helpful to me in the past when I sat in the caucus, when the time came to consider private members' bills, when the party line is not so clearly drawn. At that time, when it came to government legislation at third reading, we had to defer sometimes. 6-44

I will leave it at that. There is a list of questions the Library of Parliament proposed, and I am ready to answer your questions. 6-45

The Deputy Chair: Members of this committee don't keep to a script of questions that are provided to them, unfortunately. 7

Senator Bellemare: That is not what I meant. 8

I'm sorry. I just want to apologize. I saw some questions in the— 8-1

The Deputy Chair: I know. 9

Senator Bellemare: Not for me, but that I could have— 10

The Deputy Chair: Sure. 11

Senator Bellemare: I'm sorry. 12

The Deputy Chair: No, don't be sorry. It's open skies here. 13

We'll start with our list of questioners. 13-1

Senator Wells: Thank you, Senator Bellemare. You're right; I'm not going to go with the checklist of questions that they have at the back of this document. 14

When I review legislation, I have my own checklist. I think about how it affects Newfoundland and Labrador, how it affects sectors or industries or things that I might have an expertise in a subject matter that I care about. So I have the checklist. With a lot of legislation, I'll look at the executive summary, review it, and then I'll listen. 14-1

I know your personal checklist is probably very different. I think there are 105 checklists that people go through based on their jurisdiction, their expertise, based on a number of factors, topics that are important to them. That's one thing I'd mention. 14-2

Do you have any examples where the Senate or its committees have failed because they didn't consider a particular aspect of a piece of legislation? We know legislation passes through the house very quickly. Many times, it's given just a summary or cursory view from their committees and then we do our job, and the Senate is known for the rigour of its committees. 14-3

Are you aware of any examples where we missed something because we didn't have a checklist? 14-4

Senator Bellemare: I would say so, in a way, for senators who did not participate in a committee debate. They may be completely obsessed with a debate in the chamber and may not have references. I can give you several examples of that. As you know, Senator Wells, we had Bill C-377, a private bill that was referred to a committee and that drew many questions. The first time it was presented to a committee, the Standing Senate Committee on Banking and Trade provided observations on the bill, but they were not comprehensive. The second time, it was studied by the Standing Committee on Legal and Constitutional Affairs, which provided very few observations. 15

The same thing happened with Bill C-525 concerning the secret vote. That was a private bill introduced by members, which proposed to change the current Labour Code system to replace it with a mandatory secret vote. There was a great deal of debate, and I proposed amendments to this committee. I proposed amendments on two levels, with the first focussing on limits on the vote. There were debates about the effectiveness and the unexpected consequences of that bill based on the voting time frame. Other amendments focussed on errors. People came up with a short report to which were added observations on the errors and the debates that gave rise to, so senators in the chamber did not have a summary of the ins and outs of the bill. 15-1

The effectiveness of this kind of a list would help clear things up on all kinds of elements. I think the list is neutral and is related to our constitutional mandate. It could be applied to all legislation because we would have a report to position ourselves and examine elements in more depth. Otherwise, bills come to us and we pass them on to our caucus. For independent senators, there is no group of that nature affiliated with a political party. 15-2

Senator Wells: Of course, I remember Bill C-377 and Bill C-525 very well. But you were highly engaged on that. You didn't need a checklist. You were, more than maybe any other senator, engaged on Bill C-377. 16

Senator Bellemare: I have a checklist. 17

Senator Wells: I know. That's what I'm saying. I'm saying you were so engaged on it that you probably didn't need a checklist. You had your own checklist. Just like I mentioned in my first question, I had my own checklist. But I remember that well. 18

Do you think it would have changed had the Senate had a checklist, and would that checklist be at committee, at the Senate stage or at some reading stage? Would the Senate be compelled to do anything other than: Yes, we've addressed language; yes, we've addressed Aboriginal implications; yes, we've addressed the rights of the provinces and territories? Would it be compelled other than to note it has been addressed in consideration? 18-1

Senator Bellemare: If I understand your question, when we have a list of legislative points, it helps us debate based on those points. 19

I will give another example, that of a bill or a situation where, in committee, there are questions about the Charter. In that case, the report presents a summary of debates that have been held in that area. Some people are saying that it goes against the Charter, some are saying that it does not. It is certain that this cannot be determined. We are not the Supreme Court, but at least, it gives us an element of probability on whether or not the bill violates the Charter. So it gives us an element we could then go more in depth on. 19-1

That list of elements is related to our mandate and our role, which consist in defending the regions and minorities, and not passing bills that are unconstitutional and violate the Charter. That is part of our mandate. So the list summarizes elements of our mandate and other issues. In my opinion, it allows us to be transparent in our debates, inform our colleagues and take things further in chamber debates. 19-2

To go further in the debate in the chamber. 19-3

Senator Wells: Chair, I have one more question. 20

I've read dozens of MCs, memoranda to cabinet, and I've read dozens of reports. More often, I'll read the executive summary of a report than I'll read the report. 20-1

You said the checklist would be useful for people who don't read reports or legislation. Do you think there would be fewer pieces of legislation read if a checklist was provided, giving some people comfort that things were being taken care of, just like an executive summary sometimes does? 20-2

Senator Bellemare: You asked if I think that it would? 21

Senator Wells: If there was a checklist provided, do you think less legislation would be read by senators because there's the comfort of a checklist being considered? 22

Senator Bellemare: No, on the contrary. I think if the committee were obliged to give a report, then you will read the report with those observations. Then you go right away to the bill, and you would be able to engage in the debate more easily. 23

Senator Wells: Thanks. 24

Senator Gold: In principle, I like the idea of criteria because, if I understand correctly—and I think this is a point you emphasized—it is in line with our constitutional mandate. So, for someone like me who just arrived a year and a half ago, there is a lot to learn, and that would help me structure my thoughts on a bill and complete my personal list. 25

In addition, I am sure that, in the context of non-government bills, it is important to structure our analysis in committee to ensure that things are being done properly. I am turning to Senator McInnis because we have had specific experiences on that in a private bill. No in-depth analysis was done, and we found ourselves before a bill that may have been worthy, but that had many gaps in terms of information provided by the government. 25-1

That said, if I understand correctly, you placed emphasis on the final report. There would be a role and an advantage at the beginning of a committee's work, in terms of structuring that work. I think Senator Wells is right to say that experienced senators have very good knowledge and ask the right questions in terms of constitutionality and everything else. So the analysts could give us, at the beginning of a bill, a list that would help us identify all the questions when we start our work. 25-2

I apologize for the length of my remarks. To implement this in a practical way, because our work is practical, how do we ensure that we are striking the right balance between the structure of such a recommendation or motion and the flexibility needed not to delay the review process and make it more difficult? I'm coming back a little bit to Senator Wells' question. Under what circumstances would this really be necessary? And is there a way to structure this method flexibly, by focussing on issues that would not have been discussed in depth so that senators can say that the committee has studied these issues, but that there are gaps? Do you have any practical suggestions for implementing that? Excuse me for my speech in French. 25-3

There are more words in French than in English. 25-4

Senator Stewart Olsen: Yes, obviously. 26

Senator Gold: I take that as a gesture of respect for Molière. 27

How do we make this practical without putting an unnecessary burden on the work of the committees, which do their work, as we know, very well and with great distinction? And no follow-up question. 27-1

Senator Bellemare: I have seen reports recently from committees that have studied provisions of Bill C-45, for example. The study met all these criteria. It was very clear. So I see no problem in identifying the questions that should be asked and answering them succinctly in a report. Because there are bills that do not have a regional impact, but perhaps there is a province or two that would have something to say on a subject. Our role is to improve the bills that affect provinces, regions and minority groups. That is simply a checklist, but it is a matter of reporting, because I think there are too many committees that present reports to the Senate without amendment, made up of a single sentence. Therefore, when senators want to go further and fulfill their role, they must look into the committee's work and read the proceedings, the testimony and the debates. It can take a long time. 28

Of course, there is extra work that is required of the Library of Parliament and the staff who support the work of committees, but it doesn't have to be either ... I think it is relatively simple, since we are already hearing people's comments in the House. So we would add a brief report, observations that do not need to be adopted but that are submitted to the members. These observations have no legal value. They are not part of the report itself; they are simply added to the work of committees. 28-1

Senator Stewart Olsen: Thank you for this. This is very thoughtful work. I have several reservations, and I'll just share them with you, with some questions. 29

I think this will slow the passage of bills in the Senate and that the government may not be all that happy with us if we're going to go through with this. 29-1

The other thing is, where your motion speaks to "conforms with treaties," "impinges on any minorities," et cetera, that means a whole bunch of extra witnesses will have come before a committee. We can't just rely on the thoughts of our staff and the Library of Parliament and a committee. We'll have to invite Foreign Affairs to appear. We would have to invite minorities, should that be a flag, remembering that a lot of this is subjective. I'm just referring to process here. 29-2

The provinces: Will it impact on one or more province or territory? Have appropriate consultations been conducted? Who decides what's appropriate? 29-3

The motion refers to "whether the bill contains any obvious drafting errors." Our legal department could take a look at that, I suppose, and does already. It makes reference to "all amendments moved but not adopted in the committee." I think maybe that impinges on the right of the committee to be its own master. If a committee reviews amendments and votes them up and down, I trust that the committee has done its work. There is also reference to "in the committees' opinion," and yes, that's fine. I think my major concern is the process of accomplishing this. 29-4

One thing I was going to ask you to consider is that perhaps this checklist is best given to senators as they prepare their private members' bills or as people prepare their legislation. In other words, for bills that come from the government, they can be aware that this is what we'll be looking for, and, if I'm writing a private member's bill, I should refer to something like this. Because I think it is very thoughtful, but my question is to process. 29-5

Senator Bellemare: It's a very good question. I think you're right, when you look at it from the point of view of the process, if it is imposed on the committee to study the bills through those questions. 30

But my point was not to oblige the committee to study a bill through those questions. It was to report to the committee, depending on what they heard on those questions. 30-1

If I may, I will use this image because this is the one I have in my mind. 30-2

If you go fishing with a big net and you catch all kinds of fish, you put the cod with the cod, the skate with the skate, the small fish and the big fish, and say, "Here's my catch". You aren't going cod fishing and skate fishing at the same time. It is really to classify the information we obtain in committee according to these criteria. 30-3

I actually agree with you. If a committee had this checklist and was obliged to answer it, it wouldn't be manageable, and that was not my point. My point was to have at least a report that says something of what the committee heard. That's why I said previously that if we could also have the list of the experts or people who came to the committee, it would be useful. But it's a reporting, not an order to the committee as to how to do the job. 30-4

Senator Stewart Olsen: I see. Thank you. 31

Senator Gold: I want to be clear. If, at the end of the analysis, no witness came forward and said, "By the way, there's a real problem with international treaties here" or "My goodness, this has a disproportionate impact on this or that," then it simply wouldn't be mentioned in your observation. But if there was a controversy around the constitutionality, then at least that would be identified in an observation in the report. 32

Senator Bellemare: Exactly. 33

Senator Gold: Thank you. 34

The Deputy Chair: But wouldn't it be automatically? 35

Senator Bellemare: It would not be an order for the committee to look for that. It's a way to report to the Senate what they heard. They can report on some challenges that were really important. 36

With this list, they can say what's wrong. For example, with such and such a province, there is such and such a difficulty, such and such a minority group is of the opinion that if we added such and such, it would be better, such and such an industrial sector believes that such and such an international trade-mark treaty poses a problem. There would be an order, it would be mentioned and it would not be forgotten. 36-1

Senator Massicotte: Thank you for appearing before us this afternoon. I am surprised to hear you say that this questionnaire is simply a reporting format. That's not how I understood it. I thought it was to lead or influence the committee in its studies. I'm wondering the same thing as everyone else. What are the advantages? Does it improve the quality of our work? Have important points been forgotten in the past? I don't think so. 37

Human nature leads us to examine what goes against our values, our knowledge or our working methods. I think we're effective enough to do that. Take the list of constitutional problems, challenges or contradictions. For example, during our debates in committee, people often say that the bill is unconstitutional, and so on. But what do we do? Some people will make arguments in the hope of slowing down our work. We have a responsibility to take note of opinions and explore them, but we are not lawyers. We're conducting studies. What would be the outcome of your proposal? If someone tells us that the bill is not constitutional, do we stop our work, do we just write a report? 37-1

Senator Bellemare: I think the criteria are essential in terms of the Senate's role and the second look it must give to bills. If a red flag is raised in committee about the constitutionality of a bill, studying it more thoroughly and summarizing it for the Senate allows us to have a more advanced debate. Otherwise, a senator will rise in the chamber at third reading to say that this may not be constitutional and another group will say the opposite. At that point, we have debates that do not always give us the real extent of the problem. We're not all experts. 38

Again, this list is not mandatory, but it will be helpful. If someone says that a bill is not constitutional, we will examine the matter more thoroughly in committee and ask other witnesses questions. In short, we will have a more substantial summary of the issue. Once the report is tabled, if the bill is not constitutional, we will try to see if it can be made constitutional. 38-1

There are government bills and private members' bills. If the private member's bill is not constitutional, an amendment will be proposed at third reading to make it constitutional or it simply will not pass. These bills, in particular, are not scrutinized like government bills. If it is a government bill, questions will be asked. The day before yesterday, during the debate on Bill C-49, some senators made amendments on the constitutionality issue. We're not the Supreme Court, so there may be a possibility that it's unconstitutional. There are other things to look at, and we told the government, which told us that it did not agree and thought the bill was clear. 38-2

Senator Massicotte: Even if it is supposed to be some kind of format for preparing a report, the logic is such that it might still influence the debate. If the committee has to prepare this report, perhaps it has thought about it. But don't you think there is a risk, because of the standard format, that we are delegating the work to analysts and that this influences our debate? It's a bit like the questions you ask in the report; you leave the analysis to someone else. The list is not checked to ensure that all criteria are met. Can it become mechanical and we forget to ask the right questions? 39

Senator Bellemare: The list contains the following item: any other matter that, in the committee's opinion, should be raised. I think the list is important. I used it to prepare some speeches, particularly in the context of Mr. Chong's bill to reform the way the chamber worked. You remember this bill; we did not share the same point of view. I could explain how I used my list. 40

To me, these elements seem legitimate to help the Senate and senators position themselves. Given that we are appointed, and taking into account the Supreme Court's reference on our role and our raison d'être, I consider that these criteria make it possible to mark out our constitutional role. It is not legitimate for us to position ourselves on a bill only out of personal preference, because we need criteria. 40-1

The example of Mr. Chong's bill was exactly that. There had been a lot of debate. It was the bill that proposed that the leadership of a party could be challenged if a proportion of members were in favour. 40-2

Senator Massicotte: Are you afraid that without this list, the committee won't do its job? 41

Senator Bellemare: When I made the list, there were only two groups in the Senate. They were both affiliated with a political party. So both of them were with the members of Parliament. I wanted to try to be a little more independent in my thinking, so I came up with this, based on what I thought our constitutional role was. 42

But now that the Senate is becoming more and more independent and there is no affiliated caucus—there is one that discusses with MPs, but the others are independent—we need criteria to guide our second review work when we are independent so that we do not just take a position based on our personal opinion, because that is not what makes us legitimate. 42-1

Senator Massicotte: Although you are not a member of an independent group, you are concerned that our program is not complete enough and that we may forget important things. 43

Senator Bellemare: On the one hand, when you belong to a caucus affiliated with a political party, there are risks that it may be difficult to be impartial in analyzing bills. On the other hand, if we are all independent and do not analyze bills in a legitimate context according to the needs of the population, our positions will be rather personal. 44

Senator Eggleton: I think that most, if not all, of these items on the list are taken into consideration virtually all the time. Remember, we do have a reputation for thoroughly going through bills when they come to committee. That means you get the different views. You get the Library of Parliament telling you about the different issues. So in the course of any of the discussions and hearings, I think you'll find all of these issues do come up. 45

In addition, we also have our individual—as Senator Wells pointed out—checklists of things that are important to each of us as well. 45-1

Where I see the value is in the report that goes to the Senate. As you point out, frequently a report on a bill will simply say the report was adopted without amendment. Sometimes it might be a little more than that. There might be observations or there might be an amendment, but there's very little information on all of that. So this could be quite useful information. 45-2

Part of the problem, however, is that a lot of these questions are not easily answered. There are going to be different views on them, whether or not a minority or economically disadvantaged group is affected, whether or not one or more provinces or territories are affected. This even includes the constitutional stuff, particularly the Charter of Rights and Freedoms stuff. Anything that involves lawyers' opinions will get you different opinions. 45-3

There could be an awful lot of information put in a lot of these. Bill C-45 is coming out of my committee soon. It could take dozens and dozens of pages to answer all of these questions, and who's going to do that? It's going to be the clerk of the committee or the Library of Parliament research people who would have to put all of that together. Of course, they also have to be careful. If you have a division of opinions on any bill, they have to be careful to have some balance in all of this or they will be criticized in weighing it too much one way or the other. There's no easy challenge to put this in writing at the end, in an objective fashion. 45-4

Have you talked to the clerk or to the library about the additional resources that might be needed to accomplish this? 45-5

Senator Bellemare: Thank you for your excellent question. I haven't talked to the clerk about the extra work that might be involved. However, from experience and looking at what we have already done in committee to prepare a summary of the debates, I would say that, for Bill C-45 and most bills, it has already been done. Reports have been submitted to the Senate. I have read these reports, and they are very well done. They allow us to report on our work. I have read the reports of the foreign affairs committee, the legal affairs committee and the Aboriginal peoples committee, and that is exactly what I would like us to have for all bills. We have it for Bill C-45, and it is huge. There are bills that are not as big. There are too many reports that are often presented without amendments and that can be summarized in a single sentence. We do not know what was done in committee. 46

So I know that the motion, as drafted, may look bureaucratic and imposing, but I would be prepared to review it, at least to require committees to report. The most important factor for me is the obligation for committees to report to the Senate what they have heard and, as much as possible, to summarize what they have heard about the Charter. That's what it's about, because without a report, it's easy. It used to be easy to get an idea when there were two caucuses. 46-1

Senator Eggleton: But whose opinion is it that it's Charter compliant? 47

Senator Bellemare: I agree that this would not be a decisive opinion. We can debate it and refer to others. We can also say that, in some cases, that is the choice that has been made. Depending on the magnitude of the implications, decisions must be made accordingly at third reading. 48

The obligation to report is fundamental on issues of concern. It is also a question of transparency. This makes the exercise rigorous for the government and for parliamentarians who will introduce a bill. They will have to defend it from that angle. 48-1

I believe that will make our debates in the Senate more effective and will make the Senate a more impartial chamber, which is in keeping with our mandate. 48-2

Senator Eggleton: Just one slight comment about these additional reports on Bill C-45, which was an extraordinary process and very valuable. I do know that in coming up with those reports, there was some argument about whether they were balanced or not. 49

Senator Bellemare: There was what? 50

Senator Eggleton: At least a couple of the committees had arguments over whether they were balanced or not. So you're going to go through that kind of thing, and it's easier said than done, is what I'm saying. 51

At the end of the day, senators can't be experts on everything. They can't be on top of everything. Okay, so additional information will help them, particularly the independent senators. But senators, at the end of the day, whether they're independent, non-independent, quasi-independent or whatever have got to be able to rely on like-minded people who are digging deeper into a particular issue, because you have to be able to read between the lines in some of these reports too. 51-1

Senator Massicotte: Like-minded means the same political point. 52

Senator Eggleton: It doesn't have to be political, just like-minded. 53

Senator Massicotte: Philosophically speaking. 54

The Deputy Chair: Thank you. We have one further questioner. 55

Senator Verner: There is indeed a great nuance in understanding the intent of your motion and what it really is. If I had to summarize, without simplifying what you have done, it is that you want all the points of view that have been expressed during the analysis of a bill to be reported. Period. 56

For some senators, this may become the way they exercise their judgment or vote on this bill. For others, it will be useful, necessary or additional information, but their personal checklists, as Senator Wells and Senator Eggleton said, will continue to apply as well. 56-1

As my colleague said, we are not experts in everything, and we cannot read and follow everything either. Certainly, if there have been debates among witnesses about compliance with the Canadian Charter of Rights and Freedoms, the committee will not decide to give priority to an opinion on adaptability to the Charter, but it will be able to explain the fact that several witnesses have discussed the Charter, that some have expressed reservations and that others have said that it passes the Charter test. 56-2

That is what I understand from your motion. Yes, one expert can say one thing and another will say another, but for me it can be useful to know that this has been discussed. 56-3

I would therefore invite you, in order to put this method into practice, to check what kinds of additional resources would be required of the Library of Parliament or the report writers. I think people will have to speak out about how this work will be done. 56-4

As long as it is a question of reporting what has been said and not arbitrating what has been said, I think there is an important nuance to be made. We are talking about reporting, not referees. That's kind of the comment I wanted to make. 56-5

Senator Bellemare: Thank you very much. That's exactly what it is. This method is intended as a tool, an instrument. 57

Senator Eggleton: I commented on the fact that there was difficulty in coming to agreement on a couple of the reports on Bill C-45 that came to our committee. 58

I forgot the most notable report of all in which there was a lot of disagreement. I'm trying to find the final wording. It was the one on the Westminster system. Just coming to an agreement on what we heard and what we thought was important so we could report it to the Senate, do you remember how long that took? Good grief. 58-1

Senator Bellemare: If I may, I have a final comment on this particular subject, because I was here a couple of times when you discussed the report. This is not the same kind of report. It's not a report that has to be signed by the members. It's observations. At least your observations, you want to put in the record that they are there. It's not the same kind of reporting, because the report is a response to a mandate, and the report we discussed a lot. 59

Senator Eggleton: Anyway, I agree with the senator here. Get some more resource costing. 60

The Deputy Chair: Thank you, Senator Bellemare. This has been thought-provoking, and I think there will be further discussion, without any doubt at all, as to whether this goes forward in the report or not. You'll be here as an ex officio member to participate, I'm sure, so thank you very much. Wonderful presentation. 61

(The committee adjourned.) 62

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